Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.Download PDFEqual Employment Opportunity CommissionMay 13, 201501-2013-1491-0500 (E.E.O.C. May. 13, 2015) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 0120131491 Agency No. HS-CIS-22623-2012 DECISION Complainant filed an appeal from the Agency’s January 29, 2013 Final Decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s Final Decision, finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Immigration Service Officer, Level 1 at the Agency’s California Service Center facility in Laguna Niguel, California. On August 22, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), national origin (German), sex (female), color (white), and age (67) when: On June 12, 2012, Complainant learned that she had not been selected for the position of Immigration Services Officer (ISO) Level 2, GS-180-11 /12, at the California Service Center (CSC), advertised under Job Announcement Number (JAN) CIS-605193-WSC. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a 0120131491 2 hearing within the time frame provided in 29 C.F.R. § 1614.108(f),1 the Agency issued a Final Decision pursuant to 29 C.F.R. § 1614.110(b). In its Decision, the Agency found that Complainant applied for the identified position along with 165 other eligible applicants, both internal and external. The selecting official (SO) relied on the recommendations of a Deputy Director and an evaluation team in making her selection of 84 candidates to fill the vacant positions. The Agency found that the evaluation team (composed of two Agency management employees), assigned a composite score to each application consisting of points awarded for each submitted resume and in the case of internal applicants, from supervisors, for writing, research and analysis, decision making, flexibility and communication skills based upon the recommendations received from supervisors in the case of internal applicants. The Deputy Director stated that candidates who scored 20 points or more were recommended for selection and ultimately selected. Complainant, the Agency observed, achieved a composite score of 17 points and was not selected. Ultimately, some candidates declined the position and some selections were made below 20 points, but all above Complainant’s 17 points. Approximately 84 persons were selected. The Agency found that because the Agency officials conducting the selection process articulated legitimate, nondiscriminatory reasons for the selections made, the Agency did not analyze Complainant’s complaint for a prima facie case of discrimination on any basis. The Agency found that the scoring system used by the evaluation team considered the quality of the applicants’ experience, rather than the quantity. The Agency found that Complainant did not show that her qualifications were plainly superior to those possessed by the selected candidates. The Agency’s Final Decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 , at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green 1 The record indicates that Complainant’s request for a hearing was untimely. , 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an 0120131491 3 inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy , EEOC Request No. 05950351 (Dec. 14, 1995). In the instant case, we find the evidence supports the Agency’s Final Decision. We find no dispute that Complainant was qualified for the identified position and that approximately half of the eligible candidates who applied were selected while Complainant was not. We consider the statement of Complainant’s immediate supervisor who states that he was only Complainant’s supervisor for a short while (a matter of weeks) before he was asked to provide a recommendation for Complainant. Complainant’s resume was awarded five points, but Complainant’s supervisor gave her only minimal scores (3’s) that did not allow Complainant’s composite score to fall at or above the 20 point cutoff score. We find no evidence that the selecting official, the Deputy Director conducting the recruitment process, or the members of the evaluation team were aware of Complainant’s national origin or specific age. We also find no evidence that Complainant’s sex, race, or color played any role in the Agency’s selection process. We find the selecting official states that she has never met Complainant. In an attempt to prove pretext, Complainant may establish that that her qualifications are “plainly superior” to those of the selectee. See Patterson v. Dep’t of the Treasury , EEOC Request No. 05950156 (May 9, 1996). The record reveals that the qualifications of the selected candidates represent a range of experience and variety of skills. Among the selectees are candidates with advanced academic degrees as well as those with fluency in multiple foreign languages providing the Agency with evidence, for example, of skills in writing and communications. We do not find that Complainant has presented evidence that her qualifications are so superior to those possessed by the selected candidates that the Agency’s articulated reasons are shown to be a pretext for discrimination. We decline to substitute our assessment of Complainant’s qualifications for the Agency’s rating process which took into account the specific skills identified by the evaluation team and the Deputy Director. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision, finding no discrimination. 0120131491 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 0120131491 5 RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above (“Right to File a Civil Action”). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date May 13, 2015 Copy with citationCopy as parenthetical citation